ML20082D900

Affidavit of RW Potter Supporting Motions for Judge Carpenter Disqualification,Judge Morris Disclosure of Further Biographical Data & ASLB Postponement of Special Prehearing Conference Until Issues Resolved

ML20082D900
Person / Time
Site:	Hope Creek
Issue date:	11/18/1983
From:	Potter R NEW JERSEY, STATE OF
To:
Shared Package
ML20082D894	List: ML20082D890 ML20082D900 ML20082D913
References
ISSUANCES-OL, NUDOCS 8311230129
Download: ML20082D900 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'i'iISSION Before the Atomic Safety and Licensina Board In the Matter of

, PUBLIC SERVICE ELECTRIC AND GAS CO., et al., Docket No. 50-354 OL (Hooe Creek Generating Station, Unit-1),

AFFIDAVIT OF R. WILLIAM POTTER, ESQUIRE 4-I,-R. WILLIAM POTTER, of full age, being duly sworn, upon my oath, depose and say that:

1. I am counsel of record in this proceeding for the intervenor, Joseph H. Rodriguez, the Public Advocate of the State of New Jersey. Since February, 1982 I have been

'the Assistant Commissioner of the Department of the Public Advocate.

2. I have drafted and prepared the attached Motions'and Memorandum of Law including the " Statement of 8311230129 831118

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PDR ADOCK 05000354 C PDR

r Facts". All the facts and arguments contained therein are true and accurate to the best of my knowledge and I incorporate them here as if fully repeated.

3. The Public Advocate files these motions in good faith.and with full understanding of their seriousness. In so doing, it should be noted that we do not allege that Dr. Carpenter or Dr. Morris has in fact prejudged any issue that may be placed into con-troversy in this proceeding. Nor does'the Public Advocate allege that either' judge.has shown any actual bias against the intervenor or partiality to the

{ applicant utilities, PSE&G and Atlantic Electric Co.

3.

4. The basis for the motions is the Public Advocate's-concern that public confidence in the inte-grity of the process for adjudicating the health, safety and environmental impacts of operating Hope Creek requires that (a) Dr. Carpenter disqualify (or recuse) himself from this proceeding, (b) Dr. Morris reveal his prior involvement, if any, in the AEC's review of the Newbold Island or Hope Creek application, and (c) that the Board postpone the Special Prehearing Conference

-until these motions are settled.

5. Dr. Carpenter has revealed that he worked i

l .for twenty years as a consultant "to eight different

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electrical utility companies (on) . . . the environmental effects of the operation of electricity generating plants, both nuclear and fossil fueled." Among his projects was the Oyster Creek Nuclear Generating Station, a 640 mega-watt boiling water reactor (BWR") -which was manufactured by the General Electric Company, the same company which designed the Hope Creek BWR.

6. In addition, the Honorable Marshall E.

Miller, Chairman of the Licensing Board, has written that Dr.

Carpenter- was a consultant to the applicant in this case, PSE&G. Specifically, Judge Miller stated that "[d]uring the mid-60's, Dr. Carpenter . . . also performed some dye studies of Newbold Island,' part of the Delaware River, for the Public Service Gas and Electric Company."

7. Since Newbold Island was the original site chosen by the' applicants for the reactor now under con-struction at Hope Creek, and the subject of this proceeding, it is reasonable to conclude that, (a) PSE&G employed Dr.

4 Carpenter on matters relating to factual environmental questions that may be disputed and resolved by the Board, and (b) PSE&G retained him specifically with' respect to the applicant's choice of the Hope Creek site and the impacts of operation of what is now the Hope Creek reactor.

8. Accordingly, Dr. Carpenter's prior employ-5- i a

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ment by PSE&G raises a reasonable apprehension that he may not be able to discharge his duties as a judge in this proceeding with complete impartiality. This apprehen-sion is underscored by Dr. Carpenter's wide-ranging employment on behalf of electric utilities regarding matters of potential relevance to the Hope Creek applica-tion.

9. Again, it is important to emphasize that the Public Advocate does not contend that Dr. Carpenter will in fact or has in fact prejudged any material issue that the Board will admit into controversy. Neverthele ss, the

, well-established principle that the objective appearance

- of impropriety, bias, partiality or conflict of interest is enough to dictate disqualification of a judge compels a similar result in this proceeding. t4orevoer, the time to do so is prior to any decision on whether to admit into controversy the contentions filed by the Public l Advocate. If a judge should disqualify himself from the L

hearing he should do so prior to the creation of any

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j possible " taint" to the proceeding.

j 10. Taken together, Dr. Carpenter's employment record shows that (a) he has devoted a substantial part of 20 years as a consultant to utilities regarding the environmental imoa:ts of nuclear reactors; (b) among l

these employers was JCP&L, which retained him to prepare

the equivalent of an environmental impact statement on a reactor similar to the facility now before this Board; and

.(d) he performed various studies for the Bechtel Cor- .

poration, the builder of Hope Creek, although the studies were apparently unrelated to this reactor,

11. Standing alone, Dr. Carpenter's employment with PSE&G on a matter potentially related to the factual issues to be decided by this Board should dictate that he voluntarily take the prudent step of disqualifying himself from this proceeding. Such a step is permitted by the rules of the Commission, 10 C.F.R. S 2.704(b).

When Dr. Carpenter's PSE&G employment is considered along with his other work, described above, the conclusion is inescapable that his continued presence creates a grave l

potential for prejudgment and bias, and the objective l

appearance of potential prejudgment and bias. Therefore, the only course which will have the necessary insulating l

l effect is to disqualify himself now prior to involving himself in any decisions which could define the outcome of this proceeding, such as preliminary rulings on the admission of the Public Advocate's contentions.

! 12. Regarding Dr. Morris, we do not know at i this point whether there are grounds to request the 1

disqualification or recusal of Dr. Morris. However, his

resume' reveals that he held positions of' authority at the AEC at a time when PSE&G application for a construction permit for the Newbold Island or Hope Creek units may have been pending and under his overall investigation. If Dr. Morris, directly or through his staff, reviewed and l investigated the Newbold Island application and partici-

! pated in the staff position that the facility should be constructed at Hope Creek, he may have prejudged factual questions concerning the licensability of the Hope Creek unit. Alternatively, the public could reasonably be expected to believe that Dr. Morris has prejudged important factual issues relevant to this proceeding, f regardless of whether in fact this is true.

13. Accordingly, in the interest of assuring full disclosure, and guaranteeing a fair and impartial hearing, the Public Advocate requests that Dr. Morris elaborate on the information contained in his resume.

Specifically, we request that he disclose and discuss the extent if any of his prior involvement in the AEC's investigation of the Newbold Island units, the staff decision that they should be moved to the present site, and the further review of the Hope Creek site, and facility _itself at that early stage.

14. The Public Advocate further believes that

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• the public interest requires that these motions and requests be resolved prior to the holding of a Special-Prehearing Cor.ference, where the Public Advocate's

-contentions and the ultimate party status of the Public Advocate will-be determined. 10 C.F.R. S2.751(a) . At that conference, now scheduled for November 22, the Board will be called upon to exercise its discretion to (a) admit, (b) modify and admit as modified, or (c) reject the Public Advocate's contention. The hearings which will follow will be limited expressly to those contentions admitted ~by the Board.

15. The Public Advocate believes that these motions have been filed in a timely manner. While the Board admitted the Public Advocate as an intervenor on October 18, the intervenor was required to direct his attention first i to (a) responding to PSE&G's lawsuit in state court, PSE&G v. Rodriguez, Docket No. A527-83T3, which seeks

{ to forbid the Advocate from intervening in any federal proceedings, and (b) preparing factual contentions on L the company's application for an operating license at l

Hope Creek. The latter, as the Board knows, was due by November 7, when they were filed.

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16. Shortly after completion of the November 7

-filing, I turned'my. attention to the question of whether there was grounds for concern that Judge Carpenter or Judge Morris should disqualify or excuse himself. Basic research was not completed until Thursday, November 17. This means that I consumed only-five (5) working days

• to research the sensitive issues raised.

17. By November 17 I had reached '

the conclusion that, in the interest of public confidence in the integrity of the proceedings, it was advisable that the Public Advocate file these motions (including a request that the prehearing conference be postponed accordingly).

l 18. Given the sensitive nature of the motions and after conferring with my colleagues, including Ms. Remis, I attempted to consult with Commissioner Rodriguez, the State Public Advocate, before proceeding L .

l further. (This is the usual decision-making procedure 1

at the department.) Thus, I endeavored to reach Mr. Rodriguez by phone on November 17, as he was attending the second of two days at the State League of Municipal-ities Conference in Atlantic City. However, it was not possible to reach Mr. Rodriguez by phone.

At some point i

• November 8 was Election Day (state holiday) and November 11 was Veterans Day (also a holiday) Ms. Remis, also attorney of record, had been assigned to assist in writing a brief to the U.S. Supreme Court.

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i in the afternoon, Mr. Rodriguez called the office. I then explained the course of my research, and he con-i-

curred in my recommendation.

19. At about 4:00 p.m. I called the offices of Judge Miller, and left a message with his secretary  ;

summarizing the motions and suggesting a conference call as soon as possible. She said that she would convey j my message to Judge Miller.

Dated: November 18, 1983 { ,

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)s, V llin T-a4' R. WILLIAM POTTER Assistant Commissioner /

Assistant Public Advocate Department of the Public l

' Advocate State of New Jersey l

Sworn and subscribed to 1

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before me this /fd day l of November 1983 h -

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